Complainant by filing this complaint has claimed that he is the sole proprietor of a business under name and style of “PEEKAY TRADERS” for the purpose of earning his livelihood by means of self employment and for the purpose of smooth running of the said concern the complainant opened a current account bearing No.01780200001216 with the op No.1 and complainant hired banking services of the op no.1 by opening the aforesaid account for a consideration which has been paid out of the margin on interest earned by the ops from the money kept in the account of complainant being maintained with the op no.1 and as such the complainant is a consumer of the ops more particularly the op no.1 within the meaning of the C.P. Act.

          Complainant further alleged that the aforesaid account of the complainant was being maintained properly and without any disturbance from any corner but all on a sudden it appeared from the bank statement for period from 01.04.2007 to 12.01.2008 that on 12.04.2007 an amount of Rs.43,537/- was reversed as interest from the account of the complainant maintained with the op no.1 for the reasons best known to the officers of op no.1 and it was done without any intimation to the complainant and further their the above act was completely illegal beyond the banking rules and same was without any validity.

          It is further submitted by a letter dated 07.05.2008 op made some false and frivolous allegations against the complainant by claiming for further claim of a sum of Rs.4,72,685/- treated as loan taken by the complainant.  But in fact complainant never took such loan and no reply was sent over the such letter and in fact complainant never executed any loan document and no loan account was opened and for which under any circumstances op could not claim any such amount from complainant as loan amount as stated by the op and practically entire allegations of the letter is false and fabricated and it was made with certain intention.

          Further it is submitted that op never sent any such document of loan in support of such allegations though complainant applied for, supplying of that document that was also not supplied but in reply they have stated that credit facility to the account of the complainant was allowed on the basis of the cheques allegedly drawn by the complainant in his account on various dates and it was also stated in the letter dated 06.01.2009 that complainant was allegedly allowed a clean overdraft facility by the ops and they also sent along with letter of certain cheques along with the statement of accounts which was also forwarded to the complainant for the first time wherefrom it appeared that the said account of the complainant was full of irregularities and a total amount of Rs.56,634/- was deducted from the account of the complainant on various dates but only an amount of Rs.43,537/- was reversed in the account of the complainant on 12.04.2007.  But there was no explanation from any corner as to what prompted the bank authorities to deduct the aforesaid amount of Rs.56,634/- from the account and to reverse the amount of Rs.43,337/- and practically op was adopting unfair trade practice and anyhow managed to use the complainant’s account in different manners and in the above circumstances for deficiency of service and unfair trade practice, complainant has filed this complaint for loss of money due to various illegal entries in the account of the complainant Rs.13,117/- and for sufferings and mental pain Rs.2 lakhs and cost of writing various letters through advocate etc Rs.5,000/-.

          On the contrary op by filing written version denied all the allegations as made by the complainant and specifically asserted that vide legal demand notice dated 07.05.2008 complainant was asked to pay Rs.4,72,685/- being the entire outstanding overdrawn amount in the account and in this connection an agreement is not always necessary in writing but there may be verbal agreement too and complainant drew certain cheques without having sufficient balance in his account and the op no.1 Bank honoured those cheques and op no.1 Bank is in a position to sue the complainant for recovery of its dues treating those cheques as documents of overdraft.

          Further fact is that complainant did not reply against the said notice challenging the claim of the complaint or about repayment and complainant also suppressed the material facts and lodged this false complaint.

          Further it is specifically submitted that no express, oral or written argument is necessary for overdraft and the agreement for grant of overdraft facility can be implied from conduct of the parties where a customer having a current account in a bank, even without any express grant of an overdraft facility, overdrew on his account and the cheques issued by the complainant are honoured, without there being sufficient balance in the account the transaction amounts to a loan and the customer is bound to make good the loan to the bank with reasonable interest.

          Further fact is that the said information officer of the op Bank sent letter on 06.01.2009 against the queries of the complainant to that effect “our Park Circus Branch allowed the credit facility to your account on the basis of cheques drawn by you in your account on various dates.  Since clean overdraft was allowed to you and you have withdrawn the amount by drawing cheques on various dates, no documents were taken except the cheques drawn by you”.

          Further it is submitted that an overdraft or cash credit account “out of arrear” where inter alia no credit for 90 days as on the date of Balance Sheet and credits are not enough to cover the interest debited during the same period.

          Further it is submitted that the account was opened on 04.01.2006 and from 23.01.2006, there are continuous debit balances in the account.  Bank thereafter prepared its Balance Sheet on 31.03.2007 as per guidelines of the Reserve Bank of India, the bank examined the position of the account as on 31.03.2007 and it was looking back for the last 90 days i.e. from 01.01.2007 and further examination of the statement it was found that during this 90 days, there is only one credit in the account and that is Rs.20,000/- on 28.02.2007.  This amount of Rs.20,000/- was not enough to cover Rs.13,117/- which is interest charged in the account dated 30.12.2006.  Then credit amount of Rs.20,000/- was not enough to cover the other 4 items of interest charged in the account namely, Rs.10,393/-, Rs.10,351/-, Rs.11,402/- & Rs.13,117/- and since the account by this time became out of order, the bank will not charge any interest till the account again becomes in order and the items of interest not covered are to be reversed so that the profit of the Bank is not fictitiously inflated.

          Further it is found that complainant did not pay the dues of the Bank entirely, so the credit account of the complainant never became in order.  So no further interest is charged in the account and this may be verified from the Statement of Account filed with the written version.  Further it was submitted that the reversing Rs.43,537/- on 12.04.2007, the dues of the Bank from the complainant is apparently showing less.  Previously the debit balance was Rs.9,16,272/- and after reversal, it is now showing Rs.8,72,635/-.  The Bank also claimed Rs.8,72,635/- by it’s notice dated 07.05.2007.  Had there been no reversal, the Bank could claim Rs.9,16,172/-.  So there is no scope of the complainant to object against such reversal.

          Further it is submitted that when the holder of a current account issued a cheaque without having sufficient balance in the account, the overdraft may be created.  In the present case, the complainant had a little amount of Rs.4,670/-  in his account when he issued a cheque No.859202 for Rs.3,00,000/- and the op no.1 Bank passed it considering the complainant a valued customer, then the first overdraft of Rs.2,95,330/- was created.  So the case of creation of the overdraft is the issue of cheque without having sufficient balance in the account and thereafter complainant has repeatedly issued the cheques without having sufficient balance in the account.  If the holder of a current account issues cheques when there is not any sufficient balance to cover the cheque amount, overdraft can automatically be created.  So it is from the conduct of the account holder that an overdraft is created and for which it was reversed legally and practically there is no necessity to produce any document to show that there was no agreement in respect of overdraft and the entire allegation is false and it shall be dismissed.

                                                Decision with reasons

          On study of the entire complaint and written version and particularly the statement of account in respect of credit account of the complainant, it is found that complainant had no such fund but issued cheques one after another of heavy amount which was honoured by the Bank, but against that no payment has been made by the complainant.  So, subsequently outstanding balance was found Rs.8,72,685/- as on 25.01.2010 and its bank account in respect of current account of the complainant but complainant is silent about that and in the evidence in chief complainant has stated that knowing about that.  But considering the fact i.e. statement of current account and the conduct of the complainant it is found that complainant enjoyed huge amount by issuing cheque, though in the current account there was no such balance and fact remains op Bank honoured those cheques as complainant is a valued customer.  But complainant did not pay that amount (verified as per Banking Rules).  So, invariably complainant took benefit of the overdraft against that current account and in this regard we have considered the ruling reported in Bank of Maharastra – Vs – United Construction Co. & Ors. (1986) 60 C.C. No.163 Bombay SBI – Vs -  Havth AIR 1998, Orissa 50 and also it is found that by that judgement it is already confirmed that if any customer enjoys overdraft facility continuously without any contract in that case also it shall be treated as a contract in between the customer and the Bank and in this regard after considering Banking Laws we have gathered that overdraft is a loan refundable with interest.  But no explanation or oral or written is in the complaint.  The minimum amount of overdraft can be implied from the conduct of a customer having current account even without any overdraft facility, overdrafts on his account and the cheque issued or sent without their being sufficient balance in the account, the transaction amounts to a loan and such a customer is bound to good the loan to the pass book with reasonable interest.  So, relying upon the decision of the Hon’ble Courts and also the confirmed opinion of the different Hon’ble High Courts and further considering the present fact and circumstances and the materials as produced by the op, it is proved that the present complainant as customer having a current account in the op’s Bank even without any explanation grant of overdraft facility, overdrafts on his account and his cheques issued by him were honoured by the Bank without their having sufficient balance in the account and so the present complainant is bound to meet the loan amount of the Bank with reasonable interest and practically complainant has not denied that fact when his current account Statement reveals so.

          Further we have relied upon the ruling reported in AIR 1995 Bombay 432 and are confirmed that complainant and op by relation creditor and debtor when overdraft facility was enjoyed by the complainant by his conduct having no sufficient amount in his current account and for which relying upon the ruling in I (2000) CPJ 308  we are of view that creditor and debtor relationship is non-substance in between the complainant and op for which complainant is not a consumer and the fact is that reversal of interest as made by the op is legal.  In view of the above position and as per provision of RBI Guidelines if it is found that the account remains out of order in respect of overdraft against current account and in this case same instant happened and as per provision of RBI guidelines in any case where outstanding balance in the pre operating account, then the sanction limit on the contrary no credit continuously for 90 days as on the date of the Balance Sheet or credits are not enough to cover the interest debited during the same period.  So, considering all the legal position and the RBI guidelines and also the fact of honouring several cheques as overdraft by the op, complainant enjoyed the money and that cheques were issued by the PEEKAY TRADERS on 19.10.2006, 26.10.2006, 04.11.2006, 22.11.2006 and 25.11.2006 and total amount of those cheques are above Rs.19 lakhs.  But there was no sufficient fund and further after encashment of the said honoured of the cheques by complainant he did not clear the same within 90 days for which the said account was out of order and further fact is that complainant did not pay the said amount which was drawn by the complainant as overdraft against his current account.

          In the light of the above observation and also considering the entire fact and above findings and also rulings as referred and discussed we are convinced to hold that complainant cannot be deemed to be a consumer and fact remains his current account is out of order for not paying the overdraft amount by the complainant by getting facility of overdraft against that account.

          No doubt the said transaction amounts to loan transaction and there was no need to execute any document because by conduct of the complainant he has accepted , the transaction as loan, so the complainant is bound to pay the good loan amount to the Bank with reasonable interest.  But anyhow the complainant suppressed the truth and appeared before this Consumer Forum with false allegations, and for which the enrite complaint is found vexatious, malafide and also false.

In the result, the complaint fails.

Hence, it is

                                         ORDERED

That the complaint be and the same is dismissed on contest against the complainant as complaint is false, vexatious and fabricated one and for which complainant shall have to pay a sum of Rs.10,000/- as punitive damages to the State Consumer Welfare Fund within 15 days from the date of this order failing which penal action shall be taken against him and even prosecution shall be started if it is not paid to the State Consumer Welfare Fund within 15 days from the date of this order.